FCC Poised to Release Draft Order on Net Neutrality Overhaul

FCC Chairman Ajit Pai announced today that at its December 14 open meeting, the FCC will vote on an overhaul of the net neutrality framework adopted by the prior Administration in 2015. The full text of the draft order will be released tomorrow, but Chairman Pai has made certain key details known today. The order envisions an expanded role in oversight of Internet Service Providers (“ISPs”) by the Federal Trade Commission—a move which Acting FTC Chairman Maureen Ohlhausen welcomed.

First, as anticipated, Internet Service Providers (“ISPs”) will again be classified as providers of “information services” under Title I of the Communications Act, rather than “telecommunications services” under Title II. In many ways, in recent years the net neutrality debate in the U.S. has been as much—or some would say, more—about this statutory classification question than it has been about specific net neutrality rules.

Indeed, it was following the Title II classification that the FCC adopted rules governing ISPs’ privacy practices, which were repealed by Congress earlier this year. The Title I classification, in contrast, will, if adopted, put ISPs within the privacy jurisdiction of the Federal Trade Commission, as Chairman Pai emphasized in today’s announcement.

Second, perhaps reflecting the difficulty of sustaining bright-line net neutrality rules under Title I (following court decisions in 2010 and 2014), the draft Order will repeal the “no blocking,” “no throttling,” and “no paid prioritization” rules. It also will repeal the general conduct standard for assessing other practices that might implicate net neutrality on a case-by-case basis.

Third, the draft Order would retain some form of transparency requirements for ISPs. The notion would be that ISPs will be under an obligation to make certain public disclosures about their practices. If an ISP violates those disclosures, the Federal Trade Commission presumably would be able to pursue an enforcement action under its general Section 5 authority to police unfair or deceptive acts or practices—though the extent of the FTC’s authority to take such action against entities that operate a common carrier affiliate currently is being examined by the 9th Circuit.

It therefore appears that under the draft Order ISPs’ net neutrality practices would be regulated in a manner very similar to the regime that would govern their privacy practices. That is, there would be no specific rules governing what an ISP can or cannot do in managing traffic on its network. The FTC, however, may be able to step in if the ISP fails to keep a promise about how it manages traffic on its network.

Whether such a framework will or will not be sufficient to maintain an open internet will be hotly debated in the lead-up to the FCC’s vote on December 14, and beyond.

About the Covington Data Privacy and Cybersecurity group

Repeatedly ranked as having one of the best privacy practices in the world, Covington combines exceptional substantive expertise with an unrivaled understanding of the IT industry, and of e-commerce and digital media business models in particular. Read More